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Ettinger v. Johnson

June 18, 1975

LINDA ETTINGER, ON HER OWN BEHALF AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED
v.
DONALD E. JOHNSON, DIRECTOR, VETERANS ADMINISTRATION, WASHINGTON, D.C. AND S. W. MELIDOSIAN, DIRECTOR, VETERANS ADMINISTRATION CENTER, PHILADELPHIA, PA. LINDA ETTINGER, APPELLANT



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 73-702)

Author: Van Dusen

Before VAN DUSEN, ADAMS and GARTH, Circuit Judges

Opinion OF THE COURT

VAN DUSEN, Circuit Judge.

This appeal challenges an August 20, 1974, order of the district court, which denied plaintiff Ettinger's motions for class designation and for leave to amend her complaint, and entered judgment on the first amended complaint in favor of the defendants.*fn1

Ettinger was hired as a psychology technician, grade GS-5, by the Veterans Administration Center in Philadelphia, Pennsylvania (the Center) on May 5, 1970. She was promoted in December 1970 to grade GS-6.*fn2 Although she applied for promotions in March 1971 and April 1972, Ettinger was not promoted after December 1970. On November 17, 1972, Ettinger consulted an Equal Employment Opportunity Counselor at the Center,*fn3 alleging that she had encountered sex discrimination as a "continuing state of affairs" at the Center. The counsel construed Ettinger's allegations of sex discrimination as stating three specific complaints: (1) that she was discriminated against by being assigned to a GS-5 grade upon hiring; (2) that she was twice denied promotion because of her sex; and (3) that she was refused requested job training because of her sex. On December 6, 1972, after the counselor had investigated the facts relevant to each of these three complaints, he had a second interview with Ettinger. She advised him that she had just learned her work assignment was being changed and that she viewed this change as another instance of sex discrimination. The counselor, having investigated this latest charge, informed Ettinger at their final counseling session on December 8, 1972, that he found no basis "to her complaint that she had been discriminated against by reason of sex, either on a 'continuing' basis or at a single incident." Counselor's report of January 17, 1973, Document No. 4 in Civil No. 73-702, E.D. Pa. On December 18, 1972, Ettinger filed a formal complaint with the Center Director, Melidosian, alleging that she was subjected to "continuing" discrimination on the basis of sex. At an unspecified date after December 18, but within 15 days after the final counseling session, see 5 C.F.R. §§ 713.213(a) and 713.214(a)(1)(ii), the counselor apprised Ettinger that he questioned the timeliness of her resort to the counseling process and, therefore, of her formal complaint, "since the latest alleged act of discrimination mentioned at complainant's first session [on November 17] took place between 60-90 days previous," Document No. 4, supra, while the regulations require resort to a counselor within 30 days of an alleged discriminatory episode. 5 C.F.R. § 713.214(a)(1)(i). There is no indication that Ettinger knew of the 30-day limitation before this time.

Melidosian forwarded Ettinger's complaint to the Director of the Veterans Administration (VA), with the recommendation that it be rejected as untimely. This recommendation considered only the timeliness of the three complaints identified by the counselor as having been raised at the November 17 counseling session. No mention of the December 6 interview or of the allegedly "continuing" nature of the discrimination was made.

On February 22, 1973, Ettinger received a letter from the VA's Acting Assistant General Counsel, who declined to act on her complaint due solely to its untimeliness. The letter went on to state:

"If you are dissatisfied with this final decision, you have the following appeal rights:

You may appeal to the Chairman, Board of Appeals and Review, U.S. Civil Service Commission, Washington, D.C. 20415, within 15 calendar days of receipt of the decision.

You may file a civil action in an appropriate U.S. District Court within 30 days of receipt of the decision.

If you... appeal to the Commission, a civil action in a U.S. District Court may be filed within 30 days of receipt of the Commission's final decision.

A civil action may also be filed anytime after 180 days of the date of initial appeal to the Commission if there has not been a final decision rendered."*fn4

Pursuant to this notice of the right to sue, Ettinger bypassed an appeal to the Civil Service Commission and timely filed a complaint in the district court,*fn5 see Barnes v. Chatterton, 515 F.2d 916 (3d Cir. 1975), on behalf of herself and others similarly situated. The complaint, as amended, alleged that the defendants engaged "in employment practices which favor male applicants and employees and discriminate against females by preferential hiring, transfer, promotion [and] job assignment...." The district court, concluding that Ettinger was not entitled to trial de novo of her claims, granted summary judgment for the defendants on ...


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